Paulman v. Cheney

• Decision Date: 10 November 1885
• Citation: 18 Neb. 392,25 N.W. 495
• Parties: Paulman v. Cheney.
• Court: Nebraska Supreme Court

18 Neb. 392

25 N.W. 495

Paulman

v.Cheney.

Supreme Court of Nebraska.

Filed November 10, 1885.

Appeal from Johnson county.Babcock & Davidson, for plaintiff. L. W. Colby, for defendant.

MAXWELL, J.

This is an action to enforce specific performance of a contract for the sale of 75 acres of land off the south end of section 1, in township 5 N., range 10 E., which is described in the contract and petition by metes and bounds. The contract was entered into on the twenty-ninth day of March, 1879, by which the defendant sold to the plaintiff the land above described for the sum of $750; $100 of which was paid at the date of the contract, the balance to be paid in 10 annual payments, at the times specified in 20 promissory notes then given. The notes were payable at the office of Russell & Holmes, Tecumseh, Nebraska, without interest before due, and with 10 per cent. per annum after maturity. The defendant was to pay the taxes on said land for the year 1879 and previous years, and the plaintiff to pay the taxes of 1880 and subsequent years. The contract is substantially in the same form as in Robinson v. Cheney, 24 N. W. Rep. 378, and the construction placed upon it in that case will be adhered to in this.

It appears from the evidence that the notes due March 29, 1881, from the plaintiff to the defendant were not paid until April 23 of that year; that the notes due March 29, 1882, were not paid until May 5, 1884. At this time the notes due March 29, 1883, and March 29, 1884, were unpaid. All the money so paid was accepted by the defendant. On the seventeenth of June, 1884, and without any further default being made by the plaintiff in his payments, the defendant returned all the notes to the plaintiff in a registered letter, and declared the contract forfeited. On the thirtieth of that month, the plaintiff deposited the entire amount of the unpaid purchase money in the bank of Russell & Holmes and demanded a deed of the defendant, which not being given, the plaintiff brought this action. The answer is a general denial. The court below found the issue in favor of the plaintiff, and entered a decree enforcing the contract.

The only question that need be considered in this case is that of waiver. In Dumpor's Case, 2 Coke, 558, it was held that a condition in a lease that the lessee or his assigns shall not alien without the special license of the lessor is determined by an alienation by license, and no subsequent alienation is a breach of the condition, nor does it give a right of entry to the lessor. The courts of this country have generally held that a waiver by acceptance of rent or the like is a waiver of the existing forfeiture, but leaves the condition effectual for the future, and the same...